DAVID D. ZARECOR v. J&A MECHANICAL

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 115512 Juneau, Alaska 99811-5512

DAVID D. ZARECOR,
Employee,
Petitioner,
v.
J&A MECHANICAL,
Employer,
and
TRAVELERS INSURANCE CO.,
Insurer,
Respondants. / )
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) / FINAL DECISION AND ORDER
AWCB Case No. 199926899
AWCB Decision No. 08-
Filed with AWCB Anchorage, Alaska
on October 29, 2008

The Alaska Workers’ Compensation Board (“Board”) heard the employee’s petition for a second independent medical evaluation (“SIME”) and “fair impairment rating,” on August 13, 2008, at Anchorage, Alaska. The employee appeared telephonically, and represented himself. Attorney Robert Griffin represented the employer and insurer (“employer”). We proceeded as a two-member panel, a quorum under AS 23.30.005(f). The record closed at the hearing’s conclusion.

ISSUES

1.  Whether the employee is entitled to an SIME regarding the purchase of a hot tub for the employee’s prescribed daily hot water therapy, pursuant to AS 23.30.095(k).

  1. Whether the employee is entitled to a SIME and a “fair” permanent partial impairment (“PPI”) rating, pursuant to AS 23.30.095(k).

3.  Whether to set aside the February 21, 2002 C&R, pursuant to AS 23.30.012.

SUMMARY OF EVIDENCE

The employee filed a Report of Injury on March 3, 2000, stating that he injured his back on August 8, 1999, while lifting duct work over his head.[1] The employee was working as a Project Foreman.[2] The employee first sought treatment on August 9, 1999, at the Peters Creek Family Medicine Clinic with Thomas Cross, PAC.[3] The employee was diagnosed with a severely strained abdominal muscle with an acute lumbosacral strain, and was put on bed rest for 72 hours.[4] The employer accepted the claim and started paying benefits to the employee.[5] The employee was examined by Michael L. Gevaert, MD, on January 4, 2000, for the purpose of a permanent impairment rating.[6] The employee was referred to Dr. Gevaert by his treating physician, Gregory Culbert, DC.[7] Dr. Gevaert had examined the employee at least three times before determining that employee had a 5% whole person impairment rating according to the AMA Guides to Evaluation of Permanent Impairment, Fourth Edition.[8] On January 11, 2000, the employee was evaluated by Eric Carlsen, MD, in an Employer’s Independent Medical Evaluation (“EIME”), which also opined that the employee had a 5% PPI rating.[9] On March 21, 2001, the employee was found eligible for reemployment benefits.[10]

On February 9, 2002, the employee wrote a letter to Douglas Saltzman, Reemployment Benefits Administrator for the State of Alaska, Department of Labor, Workers’ Compensation Division (“Division”), expressing disagreement with some of the facts stated in the C&R.[11] Employee did not state in this letter that he did not want the C&R to be approved, nor did he request a hearing before the Alaska Workers’ Compensation Board.[12] There is no evidence in the record that Mr. Saltzman ever replied to the letter from the employee.

On February 21, 2002, the Board approved a Compromise and Release Agreement (“C&R”) which resulted in payment of an additional $64,600.00 to the employee.[13] The C&R provided that the employee waived all time loss benefits including additional permanent partial impairment benefits in return for the payment stated above.[14] The C&R stated in relevant part:

In order to resolve all disputes between the parties with respect to compensation rate or compensation for disability under the Alaska Workers’ Compensation Act including, but not limited to: 1)claims for any and all kinds of disability benefits including temporary partial, temporary total, permanent partial and permanent total; 2) compensation rate adjustment; 3) travel expenses; 4) interest; 5) penalties; and 6) vocational rehabilitation/reemployment and .041(k)/stipend benefits; the employer and carrier/adjuster will pay to the employee SIXTY-FOUR THOUSAND SIX HUNDRED AND NO/100 DOLLARS ($64,600.00), for full consideration thereof. The employee accepts such compromise amount in full and final settlement and in payment of all compensation rate or compensation for disability under the Alaska Workers’ Compensation Act including, but not limited to: 1) claims for any and all kinds of disability benefits including temporary partial, temporary total, permanent partial and permanent total; 2) compensation rate adjustment; 3) travel expenses; 4) interest; 5) penalties; and 6) vocational rehabilitation/reemployment and .041(k)/stipend benefits; which the employee might be presently owed or to which the employee might become entitled at any time in the future pursuant to the terms of the Alaska Workers’ Compensation Act. It is agreed the employer and carrier/adjuster will be responsible under the terms of the Alaska Workers’ Compensation Act for reasonable and necessary medical benefits, which although incurred in the future, are attributable to the condition described herein. It is also agreed that the right of the employer and carrier/adjuster to contest liability for future medical benefits is not waived under the terms of this settlement agreement.[15]

The employee signed the C&R on February 6, 2002, before a notary public for the State of Colorado.[16] The attorney for the employer and carrier/adjuster signed the C&R on February 15, 2002.[17] Attached to the C&R is a Compromise and Release Information Sheet which states in relevant part:

…The employee should ask questions if something is not understood. The law requires that the Board determine if the Compromise and Release is in the employee’s best interest. If the employee decides to hire an attorney, all or part of the fees can be assessed against the employer….If the employee does not wish to settle the claim on a Compromise and Release basis, he/she may elect to go to a Board hearing. A Compromise and Release resolves the claim and is unlikely to be overturned if the employee changes his/her mind….[18]

The employee signed and dated the Compromise and Release Information Sheet on February 6, 2002.[19] Also attached to the C&R is a copy of AS 23.30.145, which addresses attorney’s fees.[20] The employee signed the C&R with the above referenced attachments three days before writing the letter to Mr. Saltzman regarding “discrepancies” in the C&R.[21]

The employee continued writing letters to the Board and Division employees seeking help in dealing with the carrier/adjuster regarding payment of medical claims, asking how to overturn the C&R, complaining that the employer and carrier/adjuster had violated the C&R, stating that the Board should have never approved the C&R, asking for a “fair impairment rating,” seeking interest from 2006, and stating that “the Board” told him he didn’t need a lawyer.[22] However, the employee consulted with attorney Joseph Kalamarides regarding his eligibility for reemployment benefits,[23] and that the employee listed Mr. Kalamarides as his attorney on a request for conference form filed on November 14, 2000.[24]

Employee was prescribed daily warm water therapy by Lucas Derting, PAC, on February 13, 2004.[25] The employer did not controvert this treatment and paid for a membership at Sand Dunes Swimming Pool which the employee utilized from February 2004 until as early as April 2004, when the employee asked his doctor to write a prescription for a Jacuzzi, which the employee was informed the doctor could not do.[26] The employer controverted an invoice for a hot tub submitted by the employee on January 18, 2005.[27] The employer also controverted an invoice for a one-year membership to Mt. Princeton Hot Springs Resort on October 17, 2007.[28] The employer continued to pay for the employee to have a membership at Sand Dunes Swimming Pool at least through March 15, 2007.[29]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.  Board Order of an SIME under AS 23.20.095(k) or AS 23.30.110(g).

AS 23.30.095(k) provides, in part:

In the event of a medical dispute regarding determinations of causation . . . or compensability between the employee's attending physician and the employer's independent medical evaluation, the board may require that a second independent medical evaluation be conducted by a physician or physicians selected by the board from a list established and maintained by the board. The cost of an examination and medical report shall be paid by the employer. The report of an independent medical examiner shall be furnished to the board and to the parties within 14 days after the examination is concluded.

AS 23.30.110(g) provides, in part:

An injured employee claiming or entitled to compensation shall submit to the physical examination by a duly qualified physician, which the board may require. The place or places shall be reasonably convenient for the employee. . . .

AS 23.30.135(a) provides, in part:

In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided in this chapter. The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties. . . .

AS 23.30.155(h) provides, in part:

The board may upon its own initiative at any time in a case in which payments are being made with or without an award, where right to compensation is controverted, or where payments of compensation have been increased, reduced, terminated, changed, or suspended, upon receipt of notice from a person entitled to compensation, or from the employer, that the right to compensation is controverted, or that payments of compensation have been increased, reduced, terminated, changed, or suspended, make the investigations, cause the medical examinations to be made, or hold the hearings, and take the further action which it considers will properly protect the rights of all parties.

Under our regulation, 8 AAC 45.090(b), we can order the employer to pay for examinations of the employee under AS 23.30.095(k) or AS 23.30.110(g). We have long considered AS 23.30.095(k) and AS 23.30.110(g) to be procedural in nature, not substantive, for the reasons outlined in Deal v. Municipality of Anchorage,[30] and Harvey v. Cook Inlet Pipe Line Co.[31] Considering the broad procedural discretion granted to us in AS 23.30.135(a) and AS 23.30.155(h), we conclude we have wide discretion under AS 23.30.110(g) to consider any evidence available when deciding whether to order an SIME to assist us in investigating and deciding medical issues in contested claims.
AS 23.30.155(h) mandates that the Board follow such procedures as will best “protect the rights of the parties.”

The Alaska Workers’ Compensation Appeals Commission (“AWCAC”) in Bah v. Trident Seafoods Corp.,[32] addressed the Board’s authority to order an SIME under AS 23.30.095(k) and
AS 23.30.110(g). With regard to AS 23.30.095(k), the AWCAC referred to its decision in Smith v. Anchorage School District, in which it confirmed, as follows:

[t]he statute clearly conditions the employee's right to an SIME . . . upon the existence of a medical dispute between the physicians for the employee and the employer.[33]

The AWCAC further stated that before ordering an SIME, it is necessary for the Board to find that the medical dispute is significant or relevant to a pending claim or petition and that the SIME would assist the board in resolving the dispute.[34]

The AWCAC further outlined the Board's authority to order an SIME under AS 23.30.110(g), as follows:

[T]he board has discretion to order an SIME when there is a significant gap in the medical or scientific evidence and opinion by an independent medical examiner or other scientific examination will help the board in resolving the issue before it.[35]

Under either AS 23.30.095(k) or AS 23.30.110(g), the AWCAC noted that the purpose of ordering an SIME is to assist the Board, but is not intended to give employees an additional medical opinion at the expense of the employer when the employees disagree with their own physicians’ opinion.[36]

When deciding whether to order a SIME, the Board considers the following criteria:

1. Is there a medical dispute between the employee’s physician and the employer’s independent medical evaluation physician?

2. Is the dispute significant? and

3. Will a SIME physician’s opinion assist the Board in resolving the disputes?[37]

A.  SIME for Warm Water Therapy.

In the instant case we find that there is no significant dispute as to the employee’s need for warm water therapy. The employer has repeatedly paid for the employee to receive warm water therapy at Sand Dunes Swimming Pool. The employer has not controverted warm water therapy as a medical treatment, only the request by the employee for a different and more expensive modality for receipt of warm water therapy. We find that the employee is not entitled to an SIME regarding the need for a hot tub or spa membership versus use of a local swimming club.

B.  SIME for “Fair” PPI Rating.

8AAC 45.065 (c) governs the scope of issues for hearings before the Board. Although the Prehearing Conference Summary limited the issues for this hearing to the employee’s petition for examination by a board selected physician and a fair impairment rating, we find that in order to reach a decision on that issue we must first consider whether to overturn the C&R.

AS 23.30.012 governs the settlement of disputed workers' compensation claims. It provides, in pertinent part, that "[i]f approved by the board, the agreement is enforceable the same as an order or award of the board and discharges the liability of the employer for the compensation notwithstanding the provision of AS 23.30.130, 23.30.160, and 23. 30.245."

In Olsen Logging v. Lawson,[38] the Alaska Supreme Court stated, "[u]pon approval by the Board, settlement agreements have the same legal effect as awards, except that they are more difficult to set aside." In Olsen Logging, the Court noted this is true even where one party later claims to have made a "mistake" in entering into a settlement agreement.[39] As the Court noted, the legislature excepted Board-approved settlements from the modification for "mistake of fact" provisions of the Act.[40] The legislature's mandate that approved C&R agreements are enforceable and discharge the employer's further liability, notwithstanding AS 23.30.130, is "an expression of legislative intent that approved agreements may not be modified based of mistakes of fact."[41] The Court then reversed a Board decision that set aside a C&R on the basis of the employee's alleged unilateral mistake or on "mutual mistake" grounds.[42]